Jump to content


TDS non compliance? Breach of contract?


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 4641 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Hi

 

My landlord's letting agent or the landlord himself

 

Did not secure my deposit in a TDS during my 6 month tenancy until I asked for my deposit back at the end of the term - the agent said the landlord claims some damage to his property and that they have now sent off our deposit (nearly 2 weeks after we vacated the property?) and The Deposit Protection Scheme will have to deal with the problem??????

 

I have read a lot of TDS non compliance threads on here and different views and I wish to know if I possibly have a case against the landlord or his agent for TDS non compliance based on or around a possible breach of contract.

 

The reasons are as follows

 

It clearly states in my AST agreement

 

'The tenant shall pay to the agent,on the signing of this agreement,£xxxxx ( 'the deposit' ) as a Deposit,which shall be held by the 'Deposit Protection Service'The deposit will be protected by The Deposit Protection Service in accordance with the terms and conditions of The Deposit Protection Service and ADR rules' etc

 

Also my AST agreement goes on to say

 

'The Landlord shall place the Deposit with the Deposit Protection Scheme within 14 days of the tenancy commencing'

 

On this basis I signed the agreement, I would not of signed if I were told that the deposit may or may not be paid in to a deposit protection scheme or it could be paid in at anytime they wanted including after the letting term was over.

 

I am now of the opinion that they had no right to pay 'the deposit' into the scheme outside of the tenancy period (to use as a possible get out of jail free card) for they should not of retained my deposit in the first place if there was no intention to submit it in 14 days of recieving it and I view the monies that they have paid in to be just a sum of equal value to my deposit ie their money and that my deposit should be returned in full and proceed to take them to court for TDS non compliance.

 

Obviously the landlord and his agent were aware of their responsibilites and should have no excuse for non TDS compliance for the Agent drafted the agreement and the landlord signed it.

 

I would welcome any advice on how to proceed or comments on this scenario

 

and sorry folks for babbling on so muchsmile.gif

 

Many thanks

 

Hairyb

Link to post
Share on other sites

On this basis I signed the agreement, I would not of signed if I were told that the deposit may or may not be paid in to a deposit protection scheme

 

Really? Then I would ask is you where so utterly adamant about deposit protection, why has it taken you six months to find out where its held?

 

That aside, now the depsoit has been protected, it is unlikley that you will be able to bringing a successful claim for non-complaince.

Link to post
Share on other sites

Really? Then I would ask is you where so utterly adamant about deposit protection, why has it taken you six months to find out where its held?

 

That aside, now the depsoit has been protected, it is unlikley that you will be able to bringing a successful claim for non-complaince.

 

 

Really what????

 

Ahh silly me I am the one to find out where it is really held am I?

 

When the landlord and agent commit themselves in writing and tell me it will be held by the DPS within 14 days time.

 

So,when I enter into an agreement with terms and conditions and they have not been fullfilled it's tough is it?

 

If retrospective compliance was permitted, there would be no point in having the legislation whatsoever.

Link to post
Share on other sites

One of the key basis of your argument is that you wouldnt have signed the contract if you had known the depsoit wasnt protected during your tenancy. You then went on to never check the status of your deposit? Therefore a logical question any judge will ask you is 'why didnt you check?'

 

In terms of retrospective compliance negating the point of the act, I shall endeavour to be more careful next time I am drafting parliamentary legislation :rolleyes:

Link to post
Share on other sites

One of the key basis of your argument is that you wouldnt have signed the contract if you had known the depsoit wasnt protected during your tenancy. You then went on to never check the status of your deposit? Therefore a logical question any judge will ask you is 'why didnt you check?'

 

In terms of retrospective compliance negating the point of the act, I shall endeavour to be more careful next time I am drafting parliamentary legislation :rolleyes:

 

You are somehow missing the point here - I was told that the deposit would be submitted and held by the DPS within 14 days in writing in a legally binding agreement - so why should I check the status?

 

The onus is not on me to make sure the deposit is protected as well you should know.

 

Besides logic I believe any Judge would also have to adhere to the prescribed legislation in this matter for which I see no mention of the tenants responsibilty to make sure the deposit is protected.

 

I believe after reading other posts that a possible reason that a judge may allow retrospective compliance is to give the landlord the benefit of the doubt and a chance to rectify his mistake once it has been brought to his attention - but as you can see in my case the landlord and agent were fully aware of their duties from day one.

 

I also did not say I would not of signed the contract had I known the deposit was not protected

 

what I said was 'I would not of signed if I were told that the deposit may or may not be paid in to a deposit protection scheme or it could be paid in at anytime they wanted including after the letting term was over.'

 

but of course I was not told that, who in their right mind would say such a thing? - but they may as well of done for it now appears to be the literal translation of

'The Landlord shall place the Deposit with the Deposit Protection Scheme within 14 days of the tenancy commencing'

 

Finally are you a landlord by any chance?

Edited by hairyb
spelling mistake
Link to post
Share on other sites

I see alot of people come onto this site (I was one) and see the 3x deposit penalty for the LL failing to put a tenants deposit into a TDS within 14 days as the way it works. For those that think this is the case, please see all the cases that have gone to court and had the judge rule in favour of the LL for having complied with the scheme, albeit late. Thats what matters at the end of the day. Judges interpretation of the law, not Jo Tenants.

Link to post
Share on other sites

Hi,

 

If you are confident enough and ready to work hard -prepraring all the docs, form etc. And to go through the whole claim process. then go ahead and do it. As at max. u may loose £150.00 and your time.

 

And Yes the LL can put the deposit at any time one likes but legally one MUST have place it any of the TDS within 14 dyas as you are already aware of it.

 

As far as I remember , Not 100% sure though-I have read on one the forums on this site that in one case judge ruled out the claim saying that the tanancy has ended- in one judge said the LL has corrected the mistake and just asked him to pay the court fee and the original deposit. In one the tenant was awarded the claim.

 

 

So it all depends upon the judge's view and tenant's luck.

 

You can try. I am not encouraging or discouraging you. Everything I mentioned above is just my view on it.

Link to post
Share on other sites

You are somehow missing the point here - I was told that the deposit would be submitted and held by the DPS within 14 days in writing in a legally binding agreement - so why should I check the status?

 

The onus is not on me to make sure the deposit is protected as well you should know.

 

Besides logic I believe any Judge would also have to adhere to the prescribed legislation in this matter for which I see no mention of the tenants responsibilty to make sure the deposit is protected.

 

I believe after reading other posts that a possible reason that a judge may allow retrospective compliance is to give the landlord the benefit of the doubt and a chance to rectify his mistake once it has been brought to his attention - but as you can see in my case the landlord and agent were fully aware of their duties from day one.

 

I also did not say I would not of signed the contract had I known the deposit was not protected

 

what I said was 'I would not of signed if I were told that the deposit may or may not be paid in to a deposit protection scheme or it could be paid in at anytime they wanted including after the letting term was over.'

 

but of course I was not told that, who in their right mind would say such a thing? - but they may as well of done for it now appears to be the literal translation of

'The Landlord shall place the Deposit with the Deposit Protection Scheme within 14 days of the tenancy commencing'

 

Finally are you a landlord by any chance?

 

Im not missing the point at all. You are quite clear in your orginal post that;

 

"I would welcome any advice on how to proceed or comments on this scenario"

 

I have pointed out that in my opinnion the way forward you have identified is flawed.

 

You are correct, the onus isnt on you to check if your deposit is protected, no one has suggested it is. But for someone whos primary motavation for signing a contract was that the landlords/agents prefromed a certain action you have been particularly lax in ensuring that action as been implimented. Did you not think it was strange that you hadnt recieved the prescribed information within 14 days?

 

If you had come on here and simply asked how to proceed, then we could have directed you to a host of threads where people have asked TDS non-complaince questions, but you didnt. You came and asked for comments on a particular scenario.

 

I am affraid you are going to have to explain to me the difference between;

 

'I would not of signed if I were told that the deposit may or may not be paid in to a deposit protection scheme or it could be paid in at anytime they wanted including after the letting term was over.'

 

and

 

'I also did not say I would not of signed the contract had I known the deposit was not protected'

 

Because they both appear to say the same thing?

 

I am not a landlord.

Link to post
Share on other sites

I think the posts of mine that you have highlighted prove my point perfectly. If you had asked a standard TDS non-compliance question then these posts, amongsts others, are where we would have directed you.

 

But, unfortunatley, you didnt ask for that. You asked for comments on the scenario you outline in your opening post, which isnt a standard TDS non-complaince question, hence, fool that I obviously am, tried to tailor my answer to your specific question.

 

Again, you are an example of a poster who after not getting the response they want, turns.

 

Nevertheless, good luck, I hope you get your depsoit back.

Link to post
Share on other sites

Im not missing the point at all. You are quite clear in your orginal post that;

 

"I would welcome any advice on how to proceed or comments on this scenario"

 

I have pointed out that in my opinnion the way forward you have identified is flawed.

 

You are correct, the onus isnt on you to check if your deposit is protected, no one has suggested it is. But for someone whos primary motavation for signing a contract was that the landlords/agents prefromed a certain action you have been particularly lax in ensuring that action as been implimented. Did you not think it was strange that you hadnt recieved the prescribed information within 14 days?

 

If you had come on here and simply asked how to proceed, then we could have directed you to a host of threads where people have asked TDS non-complaince questions, but you didnt. You came and asked for comments on a particular scenario.

 

I am affraid you are going to have to explain to me the difference between;

 

'I would not of signed if I were told that the deposit may or may not be paid in to a deposit protection scheme or it could be paid in at anytime they wanted including after the letting term was over.'

 

and

 

'I also did not say I would not of signed the contract had I known the deposit was not protected'

 

Because they both appear to say the same thing?

 

I am not a landlord.

 

You really really do not get the point do you?

 

And looking at most of your posts you seem to take a confrontaitonal attitude to anybody seeking advice and also seems to enjoy a good argument - I will not be drawn into one with you - anybody else reading this post will hopefully realise what I am trying to convey.

 

 

oh by the way look what I have found - do you think this maybe usefull to me or indeed anyone else? especially as according to you they have no chance in bringing a claim against a landlord for TDS non compliance?

seeing that you state that they can apply what ammounts to retrospective compliance at anytime ?

 

mmm I wonder who posted these? any Ideas?

 

------------------------------------------------------------------------

icon1.gif TDS Court Claims Wording - Possible Sticky?

For Information;

 

Me and and abitofapickle have come up with the following possible wording for TDS non-compliance claims. This is to be used in conjunction with the N208 County Court Claim Form. Maybe this could be used as a sticky in the future?

I would add the health warning that we still aren’t 100% sure that the N208 is the correct way to go (the other option being N1). You have been warned!!

 

The applicant makes a claim under the Housing Act 2004 section 214(1)(a) that the deposit of £825 as required in the Assured Shorthold Tenancy for 'the rental address' was not paid in to an appropriate tenancy deposit scheme (in accordance with section 213 (1) of the Housing Act 2004) or the applicant did not received the prescribed information concerning which Tenancy Deposit Scheme was to hold the deposit, within 14 days of the defendants receipt of the deposit (in accordance with section 213 (3) of the Housing Act 2004).

 

1) The applicant asks that the court makes an order in accordance with the Housing Act 2004 section 214 (3) which states the following;

 

(a) "order the person who appears to the court to be holding the deposit to repay it to the applicant"

 

A total of (Insert £ Original Deposit amount here)

 

And I understand that the Court Must also do the following;

 

2) The applicant asks that the court makes an order in accordance with the Housing Act 2004. Section 214 (4) which states the following;

 

"The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.”

 

A total of (Insert £ x3 original deposit amount here)

 

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from (Insert Date deposit should have been returned) to (Date you Submit the Application) of (Insert £ worked out using the court interest rate calculation from their website) and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of (Insert £ worked out using the court interest rate calculation from their website).

 

I am therefore seeking payment of (Insert £ of original deposit + X3 Deposit), court fee and interest.

 

http://www.hmcourts-service.gov.uk/n...ex302_0406.pdf - Link on how to work out interest on original deposit only.

 

http://www.hmcourts-service.gov.uk/c.../n208_1000.pdf - Link to N208 Claim Form

 

http://www.hmcourts-service.gov.uk/c...n208a_0499.pdf - Link to N208 guidance notes.

 

Love to here your comments.

 

-------------------------------------------------------------------------

ooo and here's another one

 

-----------------------------------------------------------------------

icon1.gif Re: Deposit being held by landlord - was not entered into deposit scheme

Your options are go for the deposit back through a regular claim or go for the throat with a x3 + deposit claim. Your LBA and accompanying court form will need to make it crystal clear to the landlord the consequences of ignoring you. The idea is to get a suitable response WITHOUT having to take the matter to the county court.

 

Assuming your going for the TDS non-compliance (which I would do if the situation was reversed);

 

Your Name and Address

Phone Numbers

Date (Right Jutified)

 

Landlords Name and address

 

(In Bold and Centred) LETTER BEFORE ACTION

 

Dear Mr "Theif"

 

In light of the ongoing issue concerning the return of my £xxxx deposit for xxxx (insert address), it has come to my attention that under Chapter 4 of the Housing Act 2004, my deposit should have been placed in one of the registerd Tennancy Deposit Schemes, with details of the holding scheme forwarded to me within 14 days of you recieveing this deposit. You will be aware that penalties for non-TDS complaince are an absoulte offence for which there is no defence. The penalties of non-compliance are the full return of the deposit without deductions + x3 the depsoit amount, in this case a total of £2746.19.

 

The sum of £2756.19 is now due. If I do not recieve it within 14 days I will submit the attached N1/N208 (delete as appropriate) to the County Court without further notice, at which point you will also become responsible for the court fee and my reasonable costs.

 

I look forward to your prompt response.

 

Yours Sincelry

 

 

Mr I am going to teach you one hell of a lesson.

 

-------------------------------------------------------------------------

and yet another

------------------------------------------------------------------------

icon1.gif Re: Deposit being held by landlord - was not entered into deposit scheme

You can definatley 100% claim. This is exactly what TDS is for, to stop Landlords such as this unilaterally witholding tenats deposits.

 

I can see no reason why you shouldnt sue now for non-complaince. You can sue for the deposit return + x3 the deposit a total of £2746.19 + court fee which will do nicely thanlyou.

 

Heres some wording that we came up with previously;

 

TDS Court Claims Wording - Possible Sticky?

 

The two schools of thought are N1 county claim or N208. There are pros and cons with them both, which are all in the thread. I would consider this pretty clear cut and would go for the N208 route. The benifit is that the landlord wont be able to defend such a claim with "this and that was dirty or there was a mark here and a scratch there argument".

 

You first need to do a letter before action (LBA) given the landlord 14 days to cough up or you will take the matter to the county court without further notice. You should print out the N208/N1 (which ever you choose) fill it in as suggested and send it along with the LBA to show your LL you mean business.

 

Get back if you need more assistance. (By the way I have made the assumption that the deposit wasnt paid before 6th April 2007 in order to secure the tenancy starting 5th May - if this is not true tell me!)

----------------------------------------------------------------------

ooo and yet another

----------------------------------------------------------------------

icon1.gif Re: Deposit Protection Query

Quote:

Originally Posted by bobzac viewpost.gif

It is written under clause 2d in the Terms and Conditions of the Tenancy Deposit Scheme, seems there is room for the judges discretion.

 

Then its wrong im affraid. The "gosspel" on the matter is the Housing Act 2004. In particular 214 (4);

 

"The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order."

 

No ifs and buts im affraid.

------------------------------------------------------------------------

 

Oh my god it seems to be you that posted them :eek: and there are lots lots more

 

were these posts made when you did not know what you were doing??

 

And the recent post you are making is because now you do??

 

I am not going to explain anything to you - you obviously like to play on words and try and twist meanings to suit your sad ends - I do not live on this site having a view on everything under the sun as you seem to do

800 + posts:)

 

If anyone else is reading this I refer you to this thread posted by Mr Pipps who genuinely seems to know what he is talking about regarding the interpretation of the TDS - and before you start and say that is because that is what I wanted to hear - well it's not - as he says'

When presented with prescriptive legislation, a Judge will simply take the literal meaning. And there is only one possible meaning that can be taken from these provisions.' check out the entire thread - this is page 3

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme-3.html

Edited by hairyb
spelling
Link to post
Share on other sites

Im going through the courts process right now and to be honest the first things that I thought was..

 

Why did you wait 6 Months?

 

and also surely it is standard to check on any agreement that all points have been adhered too in the time frame stated?

 

I am certain these are 2 questions that would be asked in Court

 

CF

Edited by Coastfodder
spelling
Link to post
Share on other sites

Im going through the courts process right now and to be honest the first things that I thought was..

 

Why did you wait 6 Months?

 

and also surely it is standard to check on any agreement that all points have been adhered too in the time frame stated?

 

I am certain these are 2 questions that would be asked in Court

 

CF

 

As I have said before I had it in writing on what I presumed to be a legally binding document - the agreement, and that the deposit would be submitted by the landlord within 14 days also bearing in mind that this was the first time I have rented a property before and was unaware and still am unaware that I had a legal obligation to check that the landlord had done his duty.

 

I did not wait six months for anything - at the end of my tenancy I was informed that the deposit was about to be submitted after I asked for my deposit back.

Link to post
Share on other sites

As I have said before I had it in writing on what I presumed to be a legally binding document - the agreement, and that the deposit would be submitted by the landlord within 14 days also bearing in mind that this was the first time I have rented a property before and was unaware and still am unaware that I had a legal obligation to check that the landlord had done his duty.

 

I did not wait six months for anything - at the end of my tenancy I was informed that the deposit was about to be submitted after I asked for my deposit back.

 

 

Its all irrelavent really, the money is now protected so the scheme has been complied with, albeit late. This is what judges have been ruling. Take your chances, but I dont think its worth it.

Link to post
Share on other sites

On the basis that your landlord did not protect the deposit within 14 days of the tenancy commencing, and on the basis that your assured shorthold tenancy is an unmanaged tenancy, and that the responsibility of deposit protection therefore lies with the landlord, I would make the following comments:

 

On the face of these circumstances, a court may well say that as the deposit is now protected by the DPS, it should be the DPS which deals with the problem, as they are supposedly more specialised in such matters. Raising the claim would then have essential got you no further towards a resolution.

 

I think any discussion around a potential case for breach of contract or misrepresentation is a complete waste of time. The Housing Act provisions concerning tenancy deposit schemes are not contractual. They are legal obligations owed by the landlord to society.

 

I think that an alternative route worth pursuing, would be a more careful analysis of the specific issues surrounding the landlord belated lodging of the deposit with the DPS.

 

Can you provide the following information:

 

- Date tenancy commenced?

- Date of your notification to end the tenancy?

- Date of last contractual day of tenancy?

- Date of landlord's final inspection of the property, at which time the 'damage' was supposedly found?

- Were you present at the landlord's final inspection of the property?

- Did you provide your forwarding address to the landlord before the last contractual day of the tenancy, for the purposes of the deposit remittance?

- Date the landlord officially lodged the deposit with the DPS - ie the date which the DPS state that they received it?

- Date the landlord contacted you to advise of his intention to lodge the deposit with the DPS?

 

If you can provide this information, then there might be a chance of circumnavigating any issue of 'retrospective compliance'.

Link to post
Share on other sites

 Share

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...